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Case Before Florida Justices May Turn on a Legal Phrase

Law: Palm Beach uses 'error in vote tabulation' to justify its hand counts. Secretary of state says a manual recount is only valid when the 'system' is flawed.


WASHINGTON — A single key phrase in state election law, rather than a great constitutional issue, lies at the heart of the case to be heard Monday by the Florida Supreme Court. If county officials find "an error in the vote tabulation that could affect the outcome of the election," they are to either correct the computer that first tallied the ballots or "manually recount all ballots."

So, what does the law mean by an "error in the vote tabulation?"

A few days after the Nov. 7 election, Palm Beach County officials undertook a hand recount of 1% of their precincts. From this, they estimated 10,000 votes had not been counted in the countywide computer tally.

Moreover, the hand count turned up 33 extra votes for Al Gore and 14 for George W. Bush. If this net gain of 19 votes for Gore held true countywide, the vice president would pick up 1,900 votes.

And this "could affect the outcome of this very close presidential contest," Judge Charles Burton, chairman of the Palm Beach County Canvassing Commission, said in a letter last week to Florida Secretary of State Katherine Harris.

Harris Refuses Countywide Count

Based on this evidence, the Palm Beach board said it needed to undertake a countywide hand recount. But Harris refused, saying such a recount was illegal.

"A manual recount of the ballots in a county is proper only where there has been a failure of the vote tabulation system," her lawyers said. Because Palm Beach officials had no evidence of "equipment malfunctions," they were not authorized to manually recount the ballots, she said.

That in essence is the case of Palm Beach County Canvassing Board vs. Katherine Harris, the legal dispute that could decide the presidency.

On Saturday, nine lawyers representing Gore filed a 62-page brief with the state high court on behalf of the Palm Beach board. The team of barristers is led by New Yorker David Boies, who was the Justice Department's special counsel in the successful antitrust case against Microsoft Corp., and W. Dexter Douglass of Tallahassee, who served as counsel for the administration of the late Florida Gov. Lawton Chiles.

Lawyers for Bush are supposed to file their briefs on behalf of Harris by noon EST today.

Gore's attorneys asked the state's highest court to do two things: Order Harris and the state Election Canvassing Commission she heads not to declare a winner until they receive the results of manual recounts now underway in three Democratic-leaning counties, and to then include those results in the "official results."

The vice president's legal team urged the justices to pay heed to a 1976 Florida Supreme Court decision that said state officials should interpret election law in a manner that gives preference to the will of the electorate, "not hypertechnical compliance with statutes."

"The question before this court is as fundamental as it is straightforward: Whether lawfully cast and counted ballots are to be included in the vote total that will resolve an issue of paramount national importance," the Gore lawyers said.

"Manual recounts are an essential part of the law of Florida [as in many other states]. They have been applied on numerous occasions in elections for lower level officials," the brief argues. And "Florida law [has] not artificially limited the term 'error in the vote tabulation' to machine breakdowns."

The Democratic lawyers theorize that a small percentage of votes were not counted by the old tabulating machines. The problem likely stems from the now infamous chads, the tiny pieces of paper that can stick to a punched-out ballot.

In a separate brief, Democratic state Atty. Gen. Bob Butterworth, co-chairman of Gore's Florida campaign, faults Harris for injecting a word into the law where it does not belong. "The plain language of the statute refers not to an error in the vote tabulation system, but to an error in the vote tabulation," he said.

Last week, in a preliminary brief submitted in the state high court, Harris' lawyers, Deborah K. Kearney and Joseph Klock Jr., argued that Florida lawmakers were concerned about computer failures or software errors when they authorized local recounts.

The 1989 additions to the election law were supposed to "promote the use of electronic systems, and not to frustrate their use and bog down the election process with countywide manual recounts in the absence of the failure of an electronic system," Harris maintained.

The secretary of state also argues that she has broad discretion to decide such issues and that a state court is obliged to defer to her opinion.

As a general rule, courts give considerable deference to government officials when considering lawsuits contending that such officials have abused their discretion.

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